What's Wrong with the Magdalenes Redress Scheme?
Jun 28, 2013 By Máiréad Enright
From the link: http://humanrights.ie/law-culture-and-religion/whats-wrong-with-the-magdalenes-redress-scheme/
It has been some time since we last covered the issue of the Magdalene Laundries. Since we last posted, the organisation Justice for Magdalenes has ceased its advocacy work on behalf of survivors . It will carry on research work – in particular an oral history project – under the directorship of Katherine O'Donnell at UCD. Justice for Magdalenes are to be commended for their years of important work. At the Jim Kemmy Thirst for Justice Awards Clare McGettrick asked that the Magdalene women would be treated as ‘national treasures' and not as ‘second best'. This week, Mr. Justice John Quirke published his recommendations for a statutory redress schem e. His recommendations have been accepted by the government. It is difficult to conclude that this is the best we can do. Here are 10 problems with the Quirke scheme. There are certainly others.
1. Even an excellent redress scheme is only part of the answer.
Doing restorative justice also requires us to look beyond the immediate context of the Magdalene laundries. In a really creative and thorough report the Irish Human Rights Commission stresses that the Government must also take steps to prevent the repetition of the sorts of abuses suffered by the Magdalene women ; for instance
2. Quirke is based on McAleese . McAleese wasn't good enough.
I blogged on the McAleese report soon after its publication . UNCAT has confirmed that the Interdepartmental Committee was not an independent inquiry of the sort required to meet Ireland's obligations under international human rights law. McAleese must be followed by an independent inquiry with full statutory powers to compel and retain evidence. The accuracy of the McAleese Report is put in doubt by Quirke. For instance, while the McAleese report suggested that 61% of women admitted to the Laundries remained there for less than a year, the Magdalene women who presented evidence to Quirke's team gave testimony indicating that this figure is closer to 9%. A new inquiry must also revisit McAleese's findings on physical abuse within the Laundries, which are grossly at odds with the testimony collated by Justice for Magdalenes (This is, of course, unsurprising because the Interdepartmental Committee ignored JFM's submissions of that testimony). The Quirke redress scheme is based on McAleese's findings. In consequence, it does not purport to offer a remedy to women who suffered physical abuse in the Laundries.
3. The redress offered under the scheme is inadequate.
As well as making arrangements for healthcare provision, the Quirke scheme offers tax-free ex gratia payments to women based on the length of their documented service in the laundries. Representative groups are divided as to the adequacy of this element of the scheme. The scheme provides for a top figure of 100,000 euro in redress; the figure available to a woman who has spent 10 or more years in a laundry. Very few women fall into this category. The majority of women who spoke to Mr. Justice Quirke's team had been in a laundry for 1-5 years. Most of these women are 66 or over, in ill-health, badly educated and living in relative poverty. A woman of 66 who had been in a laundry for 4years, would receive:
A woman in this category will not receive a 56,500 euro lump sum. 50,000 euro will be paid as a lump sum, with the remainder to be paid in weekly installments for the rest of the woman's life. The woman in our example would receive a weekly income of 239 euro, which represents the combination of her state pension, assuming she is receiving it for the first time (230 euro per week) and the remainder of the redress due to her which is to be eked over the remainder of her life at a rate of 9 euro per week. The absolute maximum ‘top up' to the state pension which any woman will receive under this scheme is 130 euro per week. This life income will not pass to dependents when the woman dies. When we take account of the age and ill-health of the majority of Magdalene women, it seems clear that many will die before they have been paid the full redress due to them under Quirke's formula. This is an especially troubling prospect for women who spent longer periods of time in the laundry, who are entitled to larger sums under the scheme.
4. Redress is not the same as compensation.
The Quirke scheme does not purport to offer compensation of the kind that would be available in a personal injuries claim. This scheme is not tailored to women's individual injuries and experiences. It is a broad brush scheme based on broad brush assumptions. While a remedy in a personal injuries claim aims to put the claimant in the position she would be in had she not been wronged, this scheme aims only to “reflect the wish of the Irish community to reduce the hurt and pain suffered by the Magdalen women by providing them with monetary payments and with sufficient health and other State benefits to ensure that the remainder of their lives will be made as comfortable as is reasonably possible.”
Page 36 of the Report quotes Stephen Winter:
“In a restorative approach, monetary payments as sist the faultlessly burdened by significantly increasing the material resources available for ongoing development at both individual and community levels. But this is not their only restorative purpose. By recognising past failures, monetary redress payments play a role in expressing state sincerity. In terms of sincerity, individual payments fill an expressive gap in the depersonalised context of state redress… The voluntary character of the ex gratia payments may appear to support this expression of state sincerity. Not bound by the courts to deliver through an adversarial process pitting the state (yet again) against its victims, the payments' discretionary quality expresses the sincere nature of the state's reconciliatory intent.”
It is not clear that payments which appear to be patently inadequate can perform this function of sincerity. Simon McGarr (@ Tupp_Ed on twitter) notes that Frank Shortt , who successfully sued the state for 27 months false imprisonment (a good analogy for the experience of the many Magdalene women who were illegally detained in the laundries) was awarded millions of euro in damages . There is a danger that if the state is perceived to have downgraded the Magdalene women's financial entitlement, then the restorative expression of sincerity will begin to look more like risk management.
5. The redress scheme is run on heavily paternalistic principles.
As discussed above, where a woman is entitled to more than 50,000 euro under the Quirke scheme, part of the ex gratia payment will be received as a life income, which cannot then be passed on to a woman's family as an inheritance. Women are not gaining an asset and do not have full control over the payments received. This provision is made in order to ‘strike a balance' between the needs of ‘vulnerable' women who fall within the scheme and those who are more capable of managing their own affairs. Why both groups of women should be treated identically is not clear.
6. Women living in the care of religious orders are not properly provided for.
Little of substance has been said about the position of those women who live in institutions run by the former Magdalene orders. What supports will be put in place to ensure that they have appropriate advocacy, that the money they receive under the scheme is properly used, and that their decisions are properly respected? Many of the orders with whom these women live, and lived under the laundries regime, are funded in respect of their care as ‘service-providers' under the terms of the Health Act 2004. How will their payments under the scheme interact with that funding?
7. Eligibility.
The Quirke Report stresses that the scheme's administrator (as yet unidentified) must apply ‘a fair and robust eligibility or qualification process so that eligible applicants will have access to institutional and other relevant records and receive such additional and other co-operation and assistance from State and other agencies as they may require in order to enable them to properly record and verify the work which they have done and the periods(s) o f time which they have spent within the laundries.' Eligibility may pose a significant hurdle. For instance, the records of the Magdalene Laundries in Galway and Dun Laoighre are not available. Other Magdalene women contend that the records of their period in the laundries are inaccurate, unreliable and in some cases have been deliberately altered. The religious orders still retain control of their records of women's incarceration.
8. The waiver.
Women participating in the scheme are required to waive their entitlement to sue the state or its agencies in respect of their period in the Magdalene Laundries. Of course, the state is very well protected in this regard both by the statute of limitations and the principles on vicarious liability. Nevertheless, as the IHRC notes in its report at p.104 , many Magdalene women have, in principle, a claim against the state for breach of constitutional rights. This should not be lightly removed by an administrative scheme.
9. It is important to decouple remedies from an aggressive and slow adversarial process, but there is still room for responsibility.
Mr. Justice Quirke says of his scheme that:
( i ) it will exclude mutually antagonistic roles and positions and will avoid invasive and painful inquiry and interrogation
(ii) it will not require the individual assessment of any of the Magdalen women and
(iii) it will be a speedy procedure as part of a final process of healing, reconciliation and closure and, in consequence,
(iv) it should reflect the expressed wishes of an overwhelming majority of the 337 Magdalen women who actively participated in a consultation process with the Commission.
These are all laudable goals in the context of this redress scheme. However, it is important to recognise that the desire to avoid antagonism and delay can only take us so far. In particular, this scheme cannot do all of the work of ‘healing, reconciliation and closure'. As Katherine O'Donnell said on Wednesday's Late Debate on RTE radio , taking the Magdalene women's experience seriously means taking the time to do justice. Doing justice will necessarily entail further interrogation of the state's involvement in the laundries. Closure cannot mean concealment.
10. The religious orders which held women in Magdalene Laundries may not contribute to funding the redress scheme.
At the launch of the Quirke Report, the Minister for Justice suggested that the religious orders which were involved in the running of Magdalene Laundries should contribute to the redress scheme. However, two orders have said that they do not plan to contribute . The religious orders are relying, in this regard, on the McAleese Report's finding that the Magdalene Laundries were not profit-making enterprises. I criticised this finding here as based on incomplete and highly subjective evidence. Findings in relation to the laundries' finances fell outside the terms of reference of the McAleese Report. The Inter-Departmental Committee, as Simon McGarr notes on Twitter, nevertheless included figures on the laundries' finances for reasons of ‘public interest'. It is extremely disturbing to see these findings used to avoid participation in the redress scheme. The Quirke report raises, and not for the first time, the question of the State's apparent inability to hold church organisations responsible for human rights abuses . The Irish Examiner reminds us that several religious orders implicated in the Magdalenes scandal amassed large sums of money in property deals during the economic boom.
Written by Máiréad Enright
Máiréad Enright lectures at Kent Law School. She is also a PhD candidate in the Centre for Criminal Justice and Human Rights, University College Cork. Her research interests are in gender and the law, law and religion, citizenship and the political dimensions of private law. You can contact her at M.Enright [at]kent.ac.uk or (+44) 1227 827996.